1. DEFINITIONS. Capitalized terms not defined elsewhere in these SaaS Terms, shall have the meanings set forth below.
1.1 “Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with, Customer or Policy Alerts.
1.2 “Agreement” means an Order for Policy Alerts Services together with these SaaS Terms.
1.3 “Policy Alerts” means Policy Alerts, LLC.
1.4 “Services” means the services ordered by Customer and provided by Policy Alerts by means of access to certain content and use of the features and functionality of software applications made available and accessible to Customer by Policy Alerts solely to the extent set forth and further described in, and as limited by, the Customer’s Order and these SaaS Terms.
1.5 “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified by the disclosing Party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
1.6 “Customer” is the Party who orders and is responsible for payment of the Policy Alerts Services for use by Customer or its Eligible Users. A Customer may be an individual or a legal or governmental entity (e.g., corporation, limited liability company, educational institution, government agency). References to “Customer” in these SaaS Terms shall in the applicable context also refer to any Administrator or Eligible User acting on Customer’s behalf.
1.7 “Documentation” means the documentation provided by Policy Alerts to Customer in electronic format that describe the features, functions and operation of the Policy Alerts Services.
1.8 “Eligible User” means any individual affiliated with Customer who Customer authorizes to use the Policy Alerts Services. If a Customer is an individual, the Customer may be the same person as the Eligible User. As between a Customer and an Eligible User, the Customer will be the owner of the Policy Alerts Data and Customer is responsible for the acts and omissions of its Eligible Users.
1.9 “Order” means an order for Policy Alerts Services and specifies number of Eligible Users.
1.10 “Parties” means Policy Alerts and Customer, each a Party.
1.11 “SaaS Terms” means these terms and conditions that together with an Order form a binding agreement between the Parties regarding use of the Policy Alerts Services.
2. ACCESS, USE AND ELIGIBLE USERS.
2.1 Provision of Access. Subject to payment of the applicable fees, Policy Alerts hereby grants Customer a non-exclusive, non-transferable right to permit access to and use of the Policy Alerts Services during the Term for the number of Eligible Users and set forth in an Order. Policy Alerts shall provide to Customer the necessary passwords, security protocols, policies, network links or connections (“Access Protocols”) to allow Customer and its Eligible Users to access the Policy Alerts Services. Customer will permit only Eligible Users to access the Policy Alerts Services through the Access Protocols and Customer will be responsible for any such use of the Policy Alerts Services using Customer’s Access Protocols. Customer shall notify Policy Alerts of any unauthorized use of any Access Protocols, password or account or any other known or suspected breach of security. Customer shall be responsible for all acts and omissions of Eligible Users, and any act or omission by such Eligible Users which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.
2.2 Usage Restrictions. Customer will not: (a) copy, modify or duplicate the Policy Alerts Services; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Policy Alerts Services is compiled or interpreted; (c) modify the Policy Alerts Services or the Documentation, or create any derivative work from any of the foregoing, except with the prior written consent of Policy Alerts; (d) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under this Agreement; (e) access or use the Policy Alerts Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law or regulation; (f) build a similar or competitive product or service to the Policy Alerts Services; or (g) damage, interfere with or disrupt the integrity, performance, security or use of the Policy Alerts Services.
2.3 Notices. Customer will not conceal, remove or alter any proprietary notice or legend regarding Policy Alerts’ proprietary rights in the Policy Alerts Services.
2.4 Retained Rights; Ownership. Policy Alerts retains all right, title and interest in and to the Policy Alerts Services and the Documentation, including all technology, software, methods, and systems and intellectual and proprietary rights embodied therein and Customer acknowledges that neither Customer nor any Eligible User owns nor acquires any rights in and to the foregoing not expressly granted by this Agreement.
2.5 Feedback. Policy Alerts in its sole discretion, may utilize, all comments, ideas, error reports and suggestions, whether written or oral, furnished by Customer or its Eligible Users or Administrators to Policy Alerts in connection with its access to and use of the Policy Alerts Services (all such comments and suggestions provided hereunder constitute, collectively, the “Feedback”) and shall not be considered Confidential Information. Customer hereby grants Policy Alerts a worldwide, non-exclusive, irrevocable, perpetual, sub-licensable, assignable, royalty-free right and license to incorporate the Feedback into Policy Alerts products and services.
2.6 Communication Eligible Users. As part of the provision of the Policy Alerts Services, Policy Alerts may need to communicate with Eligible Users from time-to-time. Customer hereby grants Policy Alerts the limited right to communicate with Eligible Users as may be necessary as part of the provision of the Policy Alerts Services, in Policy Alerts’ reasonable discretion.
3. RIGHTS AND OBLIGATIONS.
3.1 Professional Services. Policy Alerts will provide Customer with reasonable support regarding the access and configuration and use of the Policy Alerts Services. If separately agreed in writing by the Parties, Policy Alerts may also provide consulting, customization or other professional services with respect to the Policy Alerts Services.
3.2 Continuous Development. The Parties acknowledge and agree that Policy Alerts may continually develop, deliver and provide to Customer ongoing innovation to the Policy Alerts Services in the form of new features, functionality, capabilities and services. Accordingly, Policy Alerts reserves the right to modify the Policy Alerts Services from time to time. Some modifications will be provided to Customer at no additional charge. In the event Policy Alerts adds additional services to the Policy Alerts Services, Policy Alerts may condition the implementation of such services on Customer’s payment of additional fees.
3.3 Security and Business Continuity. Policy Alerts shall employ reasonable measures designed to protect the security of the Customer Data and Policy Alerts Services. Policy Alerts’ data security program will include reasonable administrative, physical and technical measures against the loss, unavailability, unauthorized access or alteration of Customer Data in the possession or under the control of Policy Alerts.
3.4 Continued Access to Customer Data. Customer acknowledges that access to Customer Data may be limited or restricted a) if fees are not paid within the terms of the Agreement, or B) after termination or expiration of the Agreement.
4. TREATMENT OF CONFIDENTIAL INFORMATION.
4.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information that the disclosing Party is required to maintain as confidential. As between the Parties, both Parties agree that all items of Confidential Information are proprietary to the disclosing Party and will remain the sole property of the disclosing Party.
4.2 Mutual Confidentiality Obligations. Each Party agrees to employ reasonable safeguards to: (a) use Confidential Information disclosed by the other Party only for the purposes described herein; (b) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) not reproduce or create any derivative work from Confidential Information disclosed to such Party by the other Party except as needed to provide the Policy Alerts Services; (d) restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) return or destroy, pursuant to Section 8.4, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
4.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 4.1 and 4.2 will not apply to Confidential Information to the extent it (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure; (e) is independently developed by the recipient; (f) is approved for release or disclosure by the disclosing Party without restriction; or (g) consists of Aggregate Data or Feedback. Each Party may also disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making any such disclosure, where possible, shall first have given written notice to the other Party in order to allow the other Party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure; or (y) to establish a Party’s rights or enforce obligations under this agreement, but only to the extent that any such disclosure is necessary.
5. REPRESENTATIONS; WARRANTIES; DISCLAIMER.
5.1 Mutual Warranty. Each Party hereby represents and warrants that the (a) execution and performance of this Agreement will not conflict with or violate any provision of any law or regulation having applicability to such Party; (b) that the execution and performance of this Agreement will not be in violation of any agreement or obligation of such Party to a third party or in violation of the rights of any third party; and (c) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
5.2 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE POLICY ALERTS SERVICES, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY POLICY ALERTS ARE PROVIDED “AS IS,” AND POLICY ALERTS DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. POLICY ALERTS DOES NOT WARRANT THAT THE POLICY ALERTS SERVICES OR ANY OTHER SERVICES PROVIDED BY POLICY ALERTS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE POLICY ALERTS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. POLICY ALERTS IS NOT RESPONSIBLE FOR COMPLIANCE WITH, AND MAKES NO REPRESENTATION OR WARRANTY THAT THE POLICY ALERTS SERVICES WILL COMPLY WITH, ANY LAW OR REGULATION APPLICABLE TO CUSTOMER OR CUSTOMER’S INDUSTRY. POLICY ALERTS’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. POLICY ALERTS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. POLICY ALERTS SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE CUSTOMER DATA, OR FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER IN RELIANCE UPON ANY CUSTOMER DATA.
6. LIMITATIONS OF LIABILITY.
6.1 Limitation of Liability. IN NO EVENT WILL POLICY ALERTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF POLICY ALERTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF POLICY ALERTS TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID BY CUSTOMER FOR POLICY ALERTS SERVICES DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THESES LIMITATIONS UPON DAMAGES AND CLAIMS ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
6.2 Essential Basis. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in Sections 5 and 6 form an essential basis of the agreement between the Parties and that absent such disclaimers, exclusions and limitations of liability, the terms, conditions and payment obligations of this Agreement would be substantially different.
7.1 By Policy Alerts. Policy Alerts will defend at its expense any suit brought against Customer by a third party, and will pay any settlement Policy Alerts makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Policy Alerts Services when used in accordance with these SaaS Terms misappropriate any United States intellectual property rights. If such a claim is made or is likely, Customer agrees to permit Policy Alerts, at Policy Alerts’ sole discretion, to enable it to continue to use the Policy Alerts Services or to modify or replace any such infringing material to make it non-infringing. If Policy Alerts determines that none of these alternatives is reasonably available, Customer shall, upon written request from Policy Alerts, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim and Policy Alerts may terminate this Agreement or the Policy Alerts Services. The foregoing indemnification obligation shall not apply if the alleged infringement arises, in whole or in part, from the Customer Data or any use of the Policy Alerts Services not in accordance with these SaaS Terms. THIS SECTION STATES POLICY ALERTS’ ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
7.2 Customer’s Indemnity Obligations. Customer agrees to hold harmless, indemnify, and, at Policy Alerts’ option, defend Policy Alerts from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages to the extent resulting from the Customer Data or any breach of these SaaS Terms.
7.3 Process. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the indemnified Party will notify the indemnifying Party in writing promptly upon learning of any claim or suit for which indemnification is sought; (b) the indemnifying Party will have control of the defense or settlement; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party’s expense.
8. TERM AND TERMINATION.
8.1 Term. The term for each Order will commence on the Effective Date of an Order as specified by Policy Alerts and will continue for an initial term of one (1) year from the Effective Date, unless earlier terminated in accordance with this Section 8. Unless otherwise specified, each Order will automatically renew for a period of six (6) months at the end of the then-current term unless either Party provides written notice of its desire to terminate at least thirty (30) days prior to the expiration of the then-current term (the initial term and each renewal term are collectively the “Term”).
8.2 Termination for Breach. Either Party may, at its option, terminate an Order in the event the other Party materially breaches any of its duties, obligations or responsibilities under these SaaS Terms and fails to cure such breach (or provide an acceptable plan for curing such breach) within thirty (30) days after receipt by the breaching Party of written notice specifying the breach.
8.3 Suspension of Access. Policy Alerts may suspend Customer’s access to the Policy Alerts Services in the event any amount due under this Agreement is not received when due and Customer has not paid such amount within five (5) days of receipt of written notice of such overdue payment. In addition, Policy Alerts may suspend access to the Policy Alerts Services for any Customer or Eligible User who does not use the Policy Alerts Services in conformance with these SaaS Terms, or if Policy Alerts, in its reasonable discretion, has reason to believe whose use poses a threat to the security of Policy Alerts Services or is in violation of section 2.2. Policy Alerts will use commercially reasonable efforts where possible to provide notice in advance of such suspension and in any case within twenty-four (24) hours after commencing such suspension.
8.4 Effect of Termination. Upon any termination of an Order, Customer will immediately discontinue all use of the Policy Alerts Services and pay all amounts due and payable hereunder. Each Party will promptly delete any Confidential Information of the other Party, except that Policy Alerts may retain Customer Data for such time as may be required by law or otherwise, to prevent fraud, resolve disputes, troubleshoot problems, or enforce these SaaS Terms. For up to thirty (30) days after the effective date of termination, Policy Alerts will, upon written request by Customer, use commercially reasonable efforts to provide Customer and/or an Eligible User with a copy of its Customer Data in a format supported by Policy Alerts. After such periods as specified in this section, Policy Alerts may delete Customer Data and Customer acknowledges and agrees that Policy Alerts will have no liability for any such deletion.
8.5 Survival. The provisions of Sections 2.4, 2.5, 2.6, 4-7, 8.4, 8.5 and 9 will survive the termination or expiration of this Agreement.
9.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties and, except as specifically provided herein, supersedes and merges all prior agreements between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
9.2 Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
9.3 Notices. All notices required or permitted hereunder will be in writing, delivered by nationally recognized overnight courier (e.g., UPS, FedEx) at the Parties’ respective addresses set forth in the original Order. Notices will be deemed effective upon receipt as evidenced by courier delivery confirmation. In addition, Policy Alerts may send any notice required or permitted hereunder via email to the address specified on the original Order and such notice will be deemed effective upon receipt by Policy Alerts of email delivery notification.
9.4 Amendments; Modifications. We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will try to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.
9.5 Assignment; Delegation. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Policy Alerts. Absent such consent, any attempted assignment or delegation will be null and void. Policy Alerts may assign its rights or delegate its duties under this Agreement to any Affiliate.
9.6 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
9.7 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
9.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time.
9.9 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, Internet access outside of Policy Alerts’ control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
9.10 Arbitration. Except as provided below, any and all disputes arising from or relating to the subject matter of the terms of this Agreement shall be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys’ fees) shall be made a part of the arbitrator’s award. The arbitration shall take place in Miami-Dade County, Florida. Notwithstanding the foregoing, the parties retain the right to seek and obtain preliminary or permanent injunctive relief from a court specified in Section 9.11
9.11 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of Florida. For purposes of all claims brought under this Agreement, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Miami-Dade County, Florida.
9.12 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
9.13 Publicity. Within thirty (30) days after execution of this Agreement, Policy Alerts may issue a press release announcing the relationship with Customer, subject to Customer’s approval, which will not be unreasonably withheld. Policy Alerts may publicly refer to Customer orally and in writing, including on Policy Alerts’ website and sales presentations, as a customer of Policy Alerts and may use Customer’s logo for such purposes.